Conrad v. Conrad

• Court: Kentucky Court of Appeals
• Writing for the Court: HOBSON, C.J.
• Citation: Conrad v. Conrad, 152 Ky. 422, 153 S.W. 740 (Ky. Ct. App. 1913)
• Decision Date: 25 February 1913
• Parties: CONRAD v. CONRAD et al.

153 S.W. 740

152 Ky. 422

CONRAD v. CONRAD et al.

Court of Appeals of Kentucky.

February 25, 1913

Appeal from Circuit Court, Shelby County.

Petition by Overton L. Conrad, individually and as executor, and others against James Vance Conrad and others for sale of lands. From a decree confirming a sale, James Vance Conrad by his guardian ad litem, appeals. Reversed and remanded.

T. B Roberts, of Shelbyville, for appellant.

Geo. L Pickett and P.J. Beard, both of Shelbyville, for appellees.

HOBSON C.J.

Emily J. Turnham by her will, which was duly admitted to probate directed that her debts and funeral expenses be paid, and devised Overton L. Conrad and James V. Conrad equally all her estate, real and personal, for and during their lives, and at their death to go to their heirs, the heirs of each to take a fee-simple interest; but if either Overton L. Conrad or James V. Conrad should die without children, then the whole estate should go to the survivor. She appointed Overton L. Conrad the executor, and he qualified. The executor was authorized to sell and convey enough of the real estate to pay her debts. She left no personal property, but died the owner of four tracts of land containing in all 355 acres of land lying in one body. Overton L. Conrad and James V. Conrad own a tract of land containing 57 acres, which is almost surrounded by the 355-acre tract. Overton L. Conrad is married, and has three children. James V. Conrad is unmarried. This suit was brought by Overton L. Conrad, his wife, James V. Conrad, and Overton L. Conrad, as executor of E. J. Turnham, against the three infant children of Overton L. Conrad and wife, David G. Wright, and Hancock Taylor. They alleged in their petition the facts above stated, also that David G. Wright held a mortgage debt against Turnham tract, which the testatrix owed at her death, amounting to $4,564; and that Hancock Taylor held a mortgage debt on the 57-acre tract, which they owned; that all the land lies adjacent and constitutes one body, lying back of the turnpike three or four hundred yards, except that there is a narrow entrance leading from the turnpike, about 100 feet in width; that this entrance is the only practicable and convenient way of getting to the land from the turnpike; that the only outlet to the Turnham tract is over the 57-acre tract; that it was to the interest of all the parties that the two tracts should be sold together; and that the proceeds of the sale of the Turnham land, after paying off the mortgage debt, should be invested in other property. A guardian ad litem was appointed for the infants, and on final hearing a judgment was entered for the sale of the two tracts of land as a whole. The sale was made. Overton L. Conrad and James V. Conrad were the purchasers of the land as a whole for the sum of $7,250. The sale was reported to the court and confirmed, and a deed was made to the purchasers. The appeal before us is prosecuted by the guardian ad litem in the name of the infants; the purpose of the proceeding apparently being to secure the judgment of this court as to the validity of the title.

The infant defendants have no interest in the 57-acre tract. The only interest they have in the land arises under the will of E. J. Turnham, under which they take one half of the land, subject to the life estate of their father; and they have a contingent interest in the other half depending upon the contingency that their uncle, James V. Conrad, shall die without children.

The first question arising in the case is whether the court had the power, under the statute, to sell the land in which the infants had an interest in conjunction with other land, in which they had no interest; the sale being made of the two tracts as a whole. This precise question was before us in Bennett v. Bennett, 143 Ky. 380, 136 S.W. 878, upon facts not unlike those presented here. After pointing out that the proof warranted a judgment for the sale of the infants' land, the court said: "Section 491 of the Code expressly authorizes such a sale; but there is no authority in law for selling it in connection with and as a part of other lands, in which neither Samuel Bennett nor his children have an interest. In Kelly's Assignee, etc v. Muir, 30 S.W. 653, 17 Ky. Law Rep. 167, this court held that there was no provision or authority in law for making a sale of infant's real estate as a part of or in conjunction with other land, in which the defendant had no interest. The facts in that case are almost identical with the...